William Layer: The Alito draft – a prescription for constitutional government.

Op-ed views and opinions expressed are solely those of the author.

Democrats run on two speeds over Roe v Wade – hysteria and derangement. Pres. Biden calling the potential overruling of Roe “extreme” forgets how extreme Roe was when it was handed down in 1973 and that he himself had referred to it as going “too far”.

That returning abortion to the states is a danger to “women’s health” ignores the fact that any surgical procedure is inherently dangerous, as vigorously enunciated by my tort prof years ago. Abortion is certainly dangerous to the unborn baby, yes baby, a woman does not give birth to a codfish. Camile Paglia, an abortion supporter, even admits that abortion kills a baby. Callously ignored by the abortion lobby is the number of women who die or are rendered sterile by botched, but legal abortions. Conveniently forgotten is Philadelphia abortionist Dr. Kermit Gosnell, who was such a committed abortionist that he murdered three born-alive infants. His “clinic” was so filthy it was a bacterial breeding ground. Gosnell is presently serving three life sentences for murder.

The issue before the Court, however, is not the sanctity of life, nor the legality of abortion. It is instead, the constitutionality of Roe, as Brown v. Board of Education, was for the constitutionality of Plessy v. FergusonRoe was one of a series of decisions, e.g., Reynolds v. Sims, Griswold v. Connecticut, etc., which sniffed constitutional “emanations” and various rights in the Fourteenth Amendment which were hitherto unknown or found anywhere in the plain language of the amendment. The fourteenth as conceived and ratified concerned only conferring the rights of citizenship on the recently freed slaves. It said nothing about abortion.

That it has been expanded to embrace the legal fantasies of liberal Supreme Court justices would stupefy its originators. The Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” was also distorted to justify Roe. Roe, in Justice Byron White’s dissent, was “raw judicial power”; they did it because they could.

Those, like Pres. Biden and Sen. Schumer who argue that Roe is a threat to democracy advocate a position that is just the opposite, a position that denies citizens a voice and resorts to judicial autocracy for its defense, in other words, law by judges, not the people.  Justice Scalia argued that the Constitution neither prohibits, nor permits abortion, that it is a policy issue belonging to the people in their respective states as enunciated by the 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Ninth Amendment also supports overturning Roe as Roe denied and disparaged the rights of the people to govern themselves.  It is the conflict between a kritarchy and the rights of self-government that Roe usurps, and which is the root of contention between advocates of the unitary state and proponents of the American Republic. 

Justice Alito’s draft, if it becomes the Court’s decision, is a return to legal honesty, a return to what the Constitution was intended to be, a contract between government and governed. It is a return to “We the people…”


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